Affordable Care: Bicycling

BluesCatBluesCat is a resident of Phoenix, Arizona, who originally returned to bicycling in 2002 in order to help his son get the Boy Scout Cycling merit badge. His bikes sat idle until the summer of 2008 when gas prices spiked at over $4.00 per gallon. Since then, he has become active cycling, day-touring, commuting by bike, blogging ( and giving grief to the forum editors in the on-line cycling community.

The Supreme Court of the United States (SCOTUS) has upheld the constitutionality of the Affordable Care Act (Obamacare, as it is sometimes called, but more “officially” known as the ACA). I’m going to refrain from offering my opinion on the law itself, but briefly address why and how SCOTUS did what it did, and how it applies to federal funding for bicycle infrastructure.

Let me say, up front, that I am not a lawyer — at all — much less a Constitutional lawyer. I am a student of common sense, and as such am in a perfect position to understand and comment about this decision, as is almost everybody else.

Franz Liszt said “A person of any mental quality has ideas of his own. This is common sense.” So here are my ideas, based on my understanding of the health law and the whole legal hubbub surrounding it.

The Supreme Court
And you thought those steps weren't bike-friendly | Photo: Adam Fagen/Flickr Creative Commons

The attack on the ACA was based the idea that it was unconstitutional, under the Commerce Clause, to force people to buy something. One Federal Judge, Henry E. Hudson, said it well when he announced he could find no power under the Commerce Clause for Congress “to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market” (see Commonwealth of Virginia v. Sebelius).

The basic idea is that in any sort of economic activity where an individual is purchasing products or services, there is a certain element of voluntary action involved. To demand, by law, that all U.S. citizens purchase health care is to demand that they pay for something they may not want or even need. It would be like requiring everybody to buy a car, even if they don’t have any place to park it, can’t afford the gas to run it, and have their transportation needs satisfied via other means (buses, trains, bicycles, etc.).

The ACA supporters argued that it was Constitutional under the Commerce Clause, because you can force people to buy something if they still get the same benefit of the product or service as those who have paid for it. People cannot “opt out” of healthcare; eventually everybody is going to need it. As another federal Judge, George Caram Steeh III, said: “far from ‘inactivity,’ by choosing to forgo insurance (people) are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars … onto other market participants” (see Thomas More Law Center v. Obama).

As it stands now, a person without health insurance can simply go into an American hospital emergency room and treat the staff there as their own personal general practitioner; they cannot be refused care and so get the benefit of healthcare at no cost to themselves.

What both sides in the debate forgot is that The Constitution of the United States is not merely the Commerce Clause. And when SCOTUS makes a decision, it has to take all of the other constitutional clauses into account, including a very important one called the Taxing and Spending Clause. Congress is empowered to “lay and collect Taxes, Duties, Imposts and Excises, to … provide for the … general Welfare of the United States” (U.S. Constitution, Article 1, Sec. 8).

Because of the enormous burden of the cost of healthcare, and the genuine affect it has on “general Welfare,” the government proponents of the ACA mentioned this in their argument. They didn’t emphasize it because — as we all know — there’s a certain political element which goes ballistic at the mere mention of the word “TAX!”

The end result is that both opponents and supporters of the ACA were flabbergasted when SCOTUS came back saying that under the Commerce Clause of Article 1 the act was unconstitutional, but it certainly WAS constitutional under the Taxing and Spending Clause of that same Article 1 of the Constitution. What they’re saying is that the Feds cannot dictate what the citizenry must buy and sell, but it CAN require the people to pay for something — via a tax or fine or some other method — that is important to the health and welfare of the country.

Now, what does this have to do with bicycle funding in the federal funding for transportation? A popular argument for denying spending for pedestrian and bicycling infrastructure in the Transportation Bill is related to the Commerce Clause.

The complaint is similar to the one used by the opponents of the ACA: “Hey! You’re forcing the citizenry to pay for something they may not want and will not use!” And their argument would be perfectly valid if the Commerce Clause were the sum total of the Constitution.

It isn’t of course, and the Federal Government and the courts have long recognized pedestrian and bicycling infrastructure as important components of the overall U.S. Transportation system; so much so that language including such infrastructure has been woven into several parts of Title 23 of the United States Code (USC) which deals with Federal-Aid Highways.

Only a very fringe element of the anti-tax crowd would endeavor to eliminate taxes for the U.S. Transportation system. A lack of funding for infrastructure for roads and trains and airplanes (and bicycles and pedestrians) would be devastating for the American economy; there is nobody in the private sector, or in the governments at the local and state levels, with the resources to pick up the slack.

Dwight D. Eisenhower
Who put the "Ike" in "bike?" I did.

However, the economic impact of this lack of funding is not really the main reason for the importance of a national transportation system. As far back as 1919, a fellow named Dwight David Eisenhower recognized the need for a nationwide system of adequate roads and train tracks to be used in times of national emergency. President Eisenhower signed the Federal-Aid Highway Act of 1956 in order to build and maintain that infrastructure. In recent times the impact of the hurricanes, floods, tornadoes and wildfires across the U.S. would have been devastatingly greater without a way to transport help to those in need. Furthermore, the U.S. dependency on the foreign oil produced by countries not necessa
rily friendly to us makes it imperative that we find ways to reduce our overall fuel consumption.

The bicycle presents an alternative which can help free us from supporting oil-rich despots in other parts of the world. Using the power of the Taxing and Spending Clause, Congress can — and should — include bicycle funding in the Transportation Bill to “provide for the common defense,” and “promote the general Welfare.” Bicycling and pedestrian infrastructure is incredibly cheap when compared to the cost of a highway, it is truly “affordable care” for the health of our national transportation system.

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